| Final Order / Judgement | IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SONITPUR AT TEZPUR District: Sonitpur Present: Smti A. Devee President, District Consumer D.R Forum, Sonitpur, Tezpur Smti S.Bora Member(F) District Consumer Disputes Redressal Forum, Sonitpur Sri P.Das Member(Gen.) District Consumer Disputes Redressal Forum, Sonitpur CONSUMER COMPLAINT NO.06/2018 1.Mr Swapan Hoor : Complainant Proprietor of M/S Electro Point S/o Late Nagendra Chandra Hoor Resident of Dhekiajuli P.O & P.S: Dhekiajuli Dist:Sonitpur, Assam Vs. 1.United India Insurance Co. : Opp party No.1 Dhekiajuli branch P.O & P.S : Dhekiajuli Dist: Sonitpur,Assam Appearance: Mr.Imtiaz Ansari,Adv. : For the Complainant Mr.S.K.Singh, Adv. : For the Opp. party Date of argument : 16/09/2019, 26/09/19 Date of Judgment : 14-10-2019 JUDGMENT - The case, in brief, is that complainant is a resident of Dhekiajuli town, within the territorial jurisdiction of this Forum. He had been earning his livelihood from his shop, housed in a rented accommodation named and styled as “M/s Electro Point” that sells electrical goods. The shop was financed by UCO Bank, Dhekiajuli branch through two loan account numbers viz., WCTL A/c No.08520610007512 and WCTL A/c No.08520610000717. The shop was insured with the opp. party United India Insurance Co.Ltd. under the ‘Shop Keepers Insurance Policy’ with sum insured at Rs.14.00 lacs. During subsistence of the insurance w.e.f 15/7/14 to 14/7/15, the shop was gutted by fire on 09/3/15. Allegedly the damage was to a tune of Rs.14,05,000/-.Complainant immediately reported the incident to the opp. party and in due course lodged his insurance claim with all the relevant documents before the opp. party. The opp. party, after a long haul, on 13/2/17 deposited Rs.1,93,015.12 into the WCTL A/c No.08520610007512 and another amount of Rs.2,71,767/- into WCTL A/c No.08520610000717; ie, a total of Rs.4,64,782.12, allegedly without consulting the complainant. Being aggrieved, the complainant on 22/3/17 served a legal notice upon the opp. party demanding settlement of the claim within 15 days. But the opp. party did not respond to the notice. Alleging deficiency in service for non-settlement of the claim at par the loss and the sum insured, the Complainant is therefore, before the Forum praying a total relief of Rs.19,80,000/- that includes Rs.14,05000/- as the scale of damage of the shop in the fire incident with Bank loan interest, Rs.5,50,000/- as loss of income from the shop and Rs.25000/- as litigation cost.
- The opp. party contested the case by filing written version. Refuting the stance taken by the Complainant, the opp. party asserted that the insured-Complainant was duly informed through two letters dated 27/5/16 and 03/6/16 about processing of his claim at Rs.5.25 lacs. That the insured on 17/6/16 wrote a letter to the opp. party seeking clarification as to why his claim was settled at Rs.5.25 lacs instead of Rs.14.00 lacs. That on 10/11/16 the opp. party intimated the Complainant that the amount will be deposited directly with UCO Bank, Dhekiajuli branch. Contending interalia that the insured had not properly maintained any records of his business accounts and that the Surveyor encountered much difficulties could peg the loss at Rs.7.00 lacs, the opp. party denied any deficiency on its part and has prayed for dismissal of the complaint with cost.
- To prove his case, Complainant examined himself as C.W 1 and submitted his evidence-in-chief on affidavit proving 15 nos of documents as exhibits 1 to 15 and 4 nos of photographs as Ext-16 to Ext-19. Complainant also examined the Sr.Manager of UCO Bank, Dhekiajuli branch as C.W.2 who proved the documents viz.,Ext-20 to 21(6).
- Opp. party examined one Administrative Officer of Divisional Office, Tezpur, by way of affidavit and proved through him the documents Ext-B to Ext-G. Opp. party also examined the concerned Surveyor in the case and through him, proved the Ext-B(1) to B(11).
Witnesses on either side were cross-examined. We have carefully gone through the entire materials available on record including the written argument filed on both sides. POINTS TO BE DETERMINED - Whether there was deficiency in service on the part of the opposite party Insurance Company ?
- Whether the Complainant is entitled to get relief/ reliefs as prayed for ?
DECISION ON THE POINTS WITH DISCUSSION: - Evidently, the opposite party paid a total sum of Rs.5,25,000/- to the Complainant
against loss of insured shop through his banker/financier, UCO Bank, Dhekiajuli Branch. The Complainant as C.W.1, in cross-examination stated, “ After about a week, I was intimated in my shop by one Bank official named Sengupta that Rs.5.25 Lakh was deposited in my account” He also stated “ I have received the amount in my C.C account sometimes in the month of February,2017”. - Present complaint was submitted on 16/02/18. The Complainant in his complaint stated that the Insurance Company on 13/02/17 deposited very nominal amount of Rs.1,93,015.12 and Rs.2,71,767.00. That means, as per complaint, opposite party Insurance Company paid only Rs.4,64,782.12. No reason is found to have been assigned why, instead of receipt of Rs.5.25 Lakh, Complainant claimed receipt of Rs.4,64,782.12 only. On the otherhand, the opposite party by producing Final Survey Report (Ext-B), established that the Surveyor assessed the net liability of the Insurer at Rs.5,69,612/-. The opposite party Insurance Company also nowhere has assigned any reason of payment of Rs.5.25 Lakh to the Complainant instead of Rs.5,69,612/- or the basis of payment of Rs.5.25 Lakh. Regarding loss of stock, Complainant has exhibited one document (Ext-6). C.W.1 has stated nothing in his evidence to corroborate the figures and amount that appeared in Ext-6. He also failed to produce any register or voucher or bill or cashmemo for purchasing items mentioned in Ext-6. Ext-6 bears signature of none. C.W.1 in cross-examination stated “The Ext-6 has ben prepared by my Manager after recollection of the stock that existed at the time of fire. The name of the manager is Subhash.This paper Ext-6 has been prepared for the stock in trade of 9-3-15. It is a fact that there is no signature or any date on Ext-6, nor the name of the person who had prepared the same. It is a fact that there is also no mentioning about the date on which the stock in trade existed”.
- On a very careful scrutiny of the materials discussed above, we have found that Ext-6 has no evidentiary value. Regarding the amount of loss, the opposite party in its written version stated at paragraph-5, “The insured had in fact, admitted about having sustained total loss of around six to seven Lakhs quite earlier in point of time”. C.W.1 in his evidence in chief failed to rebut such claim. On the otherhand, to substantiate such claim, the opposite party during cross-examination of C.W.1, invited his attention to a document with his signature. Ext-A is the said document. Evidence in cross-examination of C.W.1 on Ext-A reads as follows –
“I have been shown the document signed by me which is dated 04-11-2015. I was given this document blank to put my signature and date. I handed over this blank document to the Surveyor after putting my signature thereon. I had visited the Surveyor in his office at Guwahati for about 4/5 times in a year. It is a fact that I have not stated in my complaint petition about the visits made by me to the Surveyor. Ext-A is a written declaration wherein Ext-A(1) is my signature with date. I do not want its contents to be read over to me. It is not a fact that it is written in Ext-A that stock worth Rs.6/7 lakhs has been destroyed in the incident of fire”. Curiously enough, C.W.1 in the same breath in cross-examination stated- “I have never issued any blank paper signed by me to the Insurance Company”. - Learned counsel Mr Ansari, appearing for the Complainant, during argument invited our attention to Ext-D and submitted that the Complainant, by presenting the letter (Ext-D) clearly stated that he was dissatisfied with the settlement of his claim at Rs.5.25 Lakh. According to Mr Ansari, on the face of Ext-D, Ext-A is a manufactured document.
- At this stage, we again turn round to our discussion and make scrutiny of the evidence of C.W.1. C.W.1, in cross-examination stated, “ I have been shown photographs, more particularly, Ext-18. The entire debris and burnt items were collected and taken in one single photograph in Ext-18”. C.W.1 admitted that he had not submitted the statement of stock of account relating to his C.C account, either covering the date of incident of fire or prior to that. Evidently, Complainant has not produced a single document except Ext-6 or Register containing stock in trade.
- We have already made our opinion that Ext-6 has no evidentiary value. In view of such evidence of the Complainant, we have made a cursory glance at Ext-18, photograph and Report of the Surveyor. Ext-B is the Final Survey Report. The Surveyor fixed net liability at Rs.5,69,612/- The Surveyor, as per Report, inspected the incident site and volume of debris found at the site. His observation find its place in page 6 of the Ext-“B”. Relevant portion of the observation made by the Surveyor in his report reads as follows:-
“B) FROM THE DEBRIS - As already stated earlier in the report, the volume of debris found at spot was mixed with different materials including wooden members of the racks etc. The Insured stock being electrical items, these were not burnt to ashes but were crackled, trampled, crumpled and mixed the charcoal. It was although tedious job to segregate the debris but the Insured on our insistence segregated the same as far as practicable. During quantification, we had to take some approximation on the basis of quantum of debris and Insured confirmation. The details of damages vis-a-vis the total probable amount of loss is shown in the ANNEXURE attached to the report. The probable value of loss thus derived was found to be Rs.5,52.122.00. We had also initiated discussion with the Insured regarding probable estimation of loss, but he emotionally exaggerated and told that his loss was more than 15.00 lac. Although we had drawn an inference of the loss, we requested to submit the relevant papers. During our next meeting with the Insured we again initiated discussion and after long deliberation and persuasion the Insured declared in writing the value of the contents at the material time of loss as Rs.6.00 to 7.00 lac. The mean of the value declared by the Insured is Rs.6,50,000.00 which is more or less equivalent to the value derived from the debris. Since no fair and conclusive idea could be formed about the Value-at-risk either from the list of damged items submitted by the Insured or from the debris, there were no other alternatives but to fall back on the available financial record of the Insured”. - In a catena of decisions including that passed in (i)Khimjibhai & Sons vs. New India Assurance Company Ltd.’ reported in IV(2011)CPJ 458 (NC) and (ii) Ankur Surana vs. United India Insurance Co.Ltd. reported in 1(2013)CPJ440(NC) relied on by the learned counsel for the opp. party, it was held that when a qualified Surveyor was appointed in accordance with the requirement of law, his report cannot be discarded without any specific reasonable ground.
- Here in the present case, the Complainant side has not disputed the report of the Surveyor.
- On a careful scrutiny of the report, it is found that the Surveyor has assessed the value of probable stock & FFF at Rs.6,48,875/-.The opposite party, as observed earlier, has already paid a sum of Rs.5.25 Lakh. The report is silent about the said amount of Rs.5.25 Lakh. The opposite party has produced nothing why the said sum of Rs.5.25 lakh was paid instead of liability fixed by the Surveyor at Rs.5,69,612/-.
- As per endorsement and official seal of the opposite party that appeared on Ext-B, the Surveyor report was available with the opposite party on 14-12-2015. But the sum of Rs.5.25 Lakh was deposited in the C.C account of the Complainant on 13-02-2017. Why such delay in making payment? Absolutely, no answer is available on record. Such conduct/action on the part of the opposite party in our opinion, amounts to deficiency in service.
- Complainant under the complaint prayed for :-
- For the cost of the damage of shop
with bank loan interest…. Rs.14,05000/- - For loss of income from the shop…. Rs. 5,50000/-
- For litigation cost………………………………. Rs. 25,000/-
Total Rs.19,80,000/- - Our discussion made above shows that the Complainant could produce nothing to justify his claim made in (a) and (b) of the Complaint. However, taking into view the observation made by the Surveyor recapitulated hereinbefore, we are of the opinion that ends of justice would meet both ends if the value of the loss is assessed at Rs.6,50,000/- as assessed by the Surveyor on the basis of average of declaration made by the Complainant (at page 6 of Ext-“B”). The Surveyor assessed the value of salvage at Rs.7,500/- Thus, deducting the value of salvage and policy excess of Rs.10,000/-, the Complainant is entitled to get Rs.6,32,500/- ( i.e., 6,50,000/- minus Rs.17,500/-) with interest @ 9% per annum from the date of filing complaint on 16/02/2018 till full and final payment along with cost of litigation of Rs.25,000/- as prayed for.
O R D E R In the result, the complaint is allowed. In view of calculations drawn in para 14, the opp. party is directed to pay the residual sum of Rs.1,07,500/-(Rupees One lakh seven thousand five hundred)only with interest @9% p.a from the date of filing complaint on 16/2/18 till full and final payment along with cost of litigation of Rs.25,000/-. Opp. party is directed to comply as above within 30(thirty)days from the date of receipt of copy of the judgment and order. Given under our hands and seal of this Forum this 14th day of October, 2019. Dictated and corrected by: Pronounced and delivered by : (SMT.A. DEVEE) President (SMT A. DEVEE) District Consumer Disputes Redressal President Forum,Sonitpur,Tezpur District Consumer Disputes Redressal Forum Sonitpur,Tezpur We agree:- (Smti S. Bora ) (Sri P.Das) Member(F) Member(Gen) | |
